Toobin appeared during two segments at the ends of the 6 am and 8 am Eastern hours of the CNN program. Anchor John Roberts (who has the same name as the chief justice) interviewed the legal analyst both times, and he first asked about the influence of new Justice Sonia Sotomayor on the Court as it starts a new session. Toobin used his slanted labeling from right out of the gate: “You know, Justice Byron White was famous for saying, ‘When you change one member of the court, you don’t just change one member, you change the whole court’...This may be, though, a rare exception to that because her politics seem very similar to David Souter’s, so that the divisions on the court- four very conservative justices, four liberal justices- Anthony Kennedy in the middle- is probably not going to change that much.”
Before turning to specific cases in front of the Court during the first segment, the CNN anchor cited how some legal experts have speculated if “Justices Roberts and Alito [will] try to sort of assert their conservative influence on the Court to a greater degree than they have in the past couple of years” with the arrival of Sotomayor. Toobin replied, “I think we’re starting to see Justice- Chief Justice Roberts in particular, but also Justice Alito- really asserting themselves as very conservative justices. There are now four very conservative justices- Roberts, Alito, Thomas, and Scalia. That’s a very powerful block, but it just underlines how important Anthony Kennedy is because he usually sides with the conservatives but not always.”
Two hours later, Roberts brought back the CNN senior legal analyst for a second segment on the Court. He again asked about the influence of the new Latina justice. Toobin answered by labeling the justice a “moderate liberal” member of the Supreme Court, just as he did in late May 2009, shortly after Sotomayor was nominated by President Obama. He also contradicted his earlier analysis on the ideological split on the Court a bit:
ROBERTS: So- so what impact do you think that Justice Sonia Sotomayor is going to have on the court, and how do you think she’ll be different than Souter was?How can Toobin, on the one hand, say there are “four very conservative justices, four liberal justices- Anthony Kennedy in the middle” during the 6 am hour, and then say that the liberal justices are “basically outnumbered” on the Supreme Court? The legal analyst was similarly inconsistent during a June 29, 2009 segment about the Supreme Court ruling in favor of the New Haven firefighters. Toobin’s first take matches almost word for word his analysis during a segment with CNN anchor Rick Sanchez on May 1, 2009: “There are four very conservative justices: Chief Justice Roberts, Scalia, Thomas and Alito. There are four liberal justices: Stevens, Souter, Ginsburg and Bryer. Anthony Kennedy is in the middle.”
TOOBIN: Initially, probably not that much- I think she’ll probably vote very much the way Souter did. She seems to be a moderate liberal- he was a moderate liberal. But over time, there certainly could be an influence. You know, the liberal block of the court has been pretty old in recent years. Justice Stevens is 89 years old. Justice Ginsburg is 76. The fact that there is this injection of new blood, that she’s only in her mid-50s- Justice Stevens is likely to leave, likely to be replaced by President Obama with another liberal- that could generate some- some force on the liberal side, even though they are basically outnumbered on the Court.
Toobin’s use of the “very conservative” label to describe members of the Supreme Court, or nominees to the Court, goes back to at least 2005, when Samuel Alito was nominated by then-President Bush. He used the label to describe Alito’s judicial philosophy on CNN’s Daybreak program.
The analyst recently gave a gushing endorsement of New York Times editor Sam Tanenhaus’s new book, “The Death of Conservatism,” in which he proclaimed it a “fascinating intellectual autopsy of the conservative moment.” So it is no surprise that Toobin’s ideological labelings have the slant that they do.